Dealing With the Marital Home in a Florida Divorce

Sometimes, one of the most challenging aspects in a marital settlement arrangement, other than child custody, is deciding what to do with the marital home. In many cases, both spouses jointly own the property, but only one spouse still lives in the marital home and that spouse desires not to move. One way to deal with such a situation is to give the spouse desiring to stay an opportunity to buy out that spouse’s one-half ownership of the home. One example of this situation was a case recently decided by the 4th District Court of Appeal.

The case involved the 2013 divorce of a Broward County couple. The couple reached an agreement, which the trial court approved, regarding the marital home. That agreement called for putting the house up for sale, but it also gave the husband a right of first refusal, meaning that, once an offer was received on the home, the husband had the right to match the offer and purchase the property himself, as long as he paid the wife cash.
Once the couple received a $600,000 offer on the house, the husband’s attorney notified the wife’s lawyer via email of his intent to exercise his right to purchase. The wife’s attorney demanded that the husband either draft and sign a purchase contract, and provide proof of his ability to make the purchase within less than two hours, or else sign the necessary papers to facilitate the third-party sale within one day. The husband allegedly did neither, so the wife went to court and persuaded the trial judge to hold the husband in civil contempt.

The appeals court reversed this ruling, determining that the husband was not in contempt. In order to exercise a right of first refusal, the husband needed to sufficiently notify the wife of his intent, and to refrain from adding or removing terms or conditions to the deal. The husband’s correspondence with the wife stated that he intended to exercise his right “in accordance with” the trial court’s orders and the parties’ real estate contract with their agent. The appeals court found that the husband’s email did not explicitly state that he was matching each element of the third party’s offer, but this could be assumed because “a right of first refusal inherently requires the holder of the right to accept the same terms and conditions as the third party offer.” A valid exercise of a right of first refusal did not require the husband to restate, item by item, each element of the third party’s offer on the house. Instead, the law only required him to announce his intent to exercise his option, which the husband did.

The husband’s email was a proper exercise of his right of first refusal and established a valid contract between the spouses. The wife’s imposition of additional demands in response to that email was a breach of that contract. Given that the wife was the party who was not in compliance, the husband could not be held in contempt for failing to meet the wife’s new demands and do so in just over 90 minutes’ time.

Jointly owned real property like a house can complicate the process of completing a divorce. One way to address this item can be through allowing one spouse to purchase the property by using a right of first refusal. Whether you are a spouse seeking to obtain sole ownership of a marital home or seeking to be paid for your half-ownership, it is important to understand what rights and obligations any agreement between you and your ex-spouse give you. For advice you can understand and representation you can count on, talk to the South Florida family law attorneys at Sandy T. Fox, P.A. Our lawyers can help you work through each element of property division in your divorce case.

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